Rufus Francklin Banks v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Memorandum Opinion filed July 22, 2008

Affirmed and Memorandum Opinion filed July 22, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00443-CR

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RUFUS FRANCKLIN BANKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1431634

M E M O R A N D U M O P I N I O N

Appellant, Rufus Francklin Banks, challenges the denial of his motion to suppress evidence. We affirm.

Banks was charged by information with the January 29, 2007, misdemeanor offense of possession of marijuana in a useable quantity of under two ounces, enhanced by one prior misdemeanor conviction. On May 11, 2007, Banks filed a motion to suppress evidence, asserting that his detention, arrest, search, and seizure were in violation of the United States Constitution and the Texas Constitution.

The trial court held a hearing on the motion to suppress, and the State called Officer Dexter to describe the circumstances surrounding Banks=s arrest. He testified that on the evening of January 29, 2007, he was patrolling Aa pretty tough neighborhood@ where A[a]ll types of crimes are committed.@ When asked what types of crimes were common for that area, he responded that A[t]he most common you will find is drug activity. . . . [s]elling, using, possessing.@ While patrolling the neighborhood, Officer Dexter saw Atwo males outside a vehicle making a hand-to-hand transaction.@ He explained that he thought it was a hand-to-hand transaction because it occurred in a common area for selling drugs, and because it did not look like a handshake since the two men were not Ashaking hands parallel to each other, but one on top of another.@ Upon seeing the police officers, Banks tried to go into a nearby store and the other man attempted to leave the scene. When Officer Dexter called out to Banks, he returned and Officer Dexter patted him down because he Athought a drug transaction had occurred.@ He Apat[ted] down the areas that possibly would hold a weapon,@ and explained to the court that he was looking for weapons, as well as drugs. As he patted down Banks=s leg, he Afelt the obvious bulge of marijuana packaging.@ When Officer Dexter asked Banks what was in his pocket, he did not respond. Officer Dexter then arrested Banks, and reached into Banks=s pocket and located the marijuana. On cross examination, Officer Dexter admitted that he was driving when he saw the transaction and that he did not actually see anything being handed off. He also admitted that although it did not appear to be a normal handshake, it could have been a different type of handshake that the two men made up. The trial court denied the motion to suppress on May 18, 2007. On May 21, 2007, Banks waived his right to a trial by jury and entered a plea of guilty. The trial court assessed punishment at confinement in the Harris County Jail for 32 days. Appellant timely filed this appeal to the denial of his motion to suppress.

A trial court=s ruling on a motion to suppress generally lies within the sound discretion of the court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the trial court is the observer of the demeanor and appearance of the witnesses during the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Villarreal, 935 S.W.2d at 138. Therefore, we must view the evidence and all reasonable inferences therefrom in the light most favorable to the ruling of the trial court. Id. The trial court=s ruling must be sustained if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. Although we must afford almost total deference to the trial court=s determination on application of law to fact questions, we may review mixed questions of law and fact de novo, when resolution of the ultimate issue does not turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89.

The purpose of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution is to Asafeguard an individual=s legitimate expectation of privacy from unreasonable governmental intrusions.@ Villarreal, 935 S.W.2d at 138. In order to suppress evidence based on an alleged Fourth Amendment violation,[1] Banks must rebut the presumption of proper police conduct. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This burden can be satisfied by establishing that a search or seizure occurred without a warrant. Id. Because the search and seizure in the present case occurred without a warrant, the burden of proof shifts to the State to establish that the search and seizure were reasonable. See id. Searches conducted outside the judicial process without prior approval by a judge or a magistrate are per se unreasonable, unless the search falls into one of the few established exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). Banks asserts that his search did not fall into one of the exceptions, and therefore the trial court should have granted his motion to suppress. We disagree.

Officer Dexter=s initial detention of Banks was lawful, based upon his reasonable suspicion that Banks was involved in criminal activity. A[S]ome seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.@ Michigan v. Summers, 452 U.S. 692, 699 (1981). For example, an officer conducts a lawful temporary detention when he has reasonable suspicion that an individual is violating the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists if, considering the totality of the circumstances, Athe officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.@ Id. Additionally, a Abrief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.@ Adams v. Williams, 407 U.S. 143, 146 (1972).

In the present case, Officer Dexter testified that Banks was seen in a Apretty tough neighborhood@ where A[a]ll types of crimes are committed,@ the most common of which is Adrug activity.@ Although Banks=s Apresence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion@ that he was committing a crime, it is a relevant factor for determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Another relevant factor was that Officer Dexter observed Banks and another male Aoutside a vehicle making a hand-to-hand transaction.@ He explained that he thought it was a hand-to-hand transaction because it took place in a common area for selling drugs, and because it did not look like a handshake since they were not Ashaking hands parallel to each other, but one on top of another.@ Finally, Officer Dexter testified that Banks and the other male split up and walked in different directions upon seeing the police officers. Nervous or evasive behavior, such as unprovoked flight upon noticing a police officer, is also a pertinent factor in determining reasonable suspicion. Wardlow, 528 U.S. at 124. Considering the totality of the circumstances, specific and articulable facts existed that, when combined with rational inferences from those facts, support the reasonable conclusion that Banks was, had been, or soon would be engaged in criminal activity. See Ford, 158 S.W.3d at 492.

Similarly, Officer Dexter=s pat down of Banks was lawful. An officer may conduct a limited search for weapons, even in the absence of probable cause, when the officer reasonably believes that a suspect is armed and dangerous. Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000). The pat down of a suspect for weapons, incident to a lawful temporary detention, is reasonable under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 29 (1968). However, the pat down must be Aconfined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.@ Id. In the present case, Officer Dexter explained to the court that he was looking for weapons as well as drugs when he Apat[ted] down the areas that possibly would hold a weapon.@ It is Aobjectively reasonable for a police officer to believe that persons involved in the drug business are armed and dangerous.@ Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006). Further, Aweapons and violence are frequently associated with drug transactions.@ Carmouche, 10 S.W.3d at 330. Therefore, Officer Dexter=s pat down of Banks, incident to his lawful temporary detention, was reasonable given his suspected involvement in a drug transaction.

Finally, Officer Dexter=s seizure of the marijuana in Banks=s pocket was lawful. When a police officer lawfully Apats down a suspect=s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect=s privacy beyond that already authorized by the officer=s search for weapons; if the object is contraband, its warrantless seizure would be justified.@ Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993). It appears from the record that the identity of the contraband was immediately apparent to Officer Dexter during his pat down of Banks. Officer Dexter testified that Aas I was patting [Banks] down, he kind of moved. . . . So, as I patted further down his jacket, going down his leg, I felt the obvious bulge of marijuana packaging.@ When asked to explain what he meant when he said that Banks moved, Officer Dexter responded that AI guess people tend to get squirmish when you go to certain areas if they=re attempting to hide something.@ The moment he felt the bulge, he thought it was marijuana. Officer Dexter Aasked [Banks] what it was. He did not respond. At which time, [Officer Dexter] went ahead and arrested him.@ After advising Banks that he was under arrest for possession of marijuana, Officer Dexter reached into Banks=s pocket and located the marijuana.

Although Officer Dexter had not actually seen the marijuana at the time that he reached into Banks=s pocket after the arrest, Athe sense of touch is capable of revealing the nature of an object with sufficient reliability to support a seizure.@ Id. at 376. Further, because Officer Dexter had already identified the contraband during his pat down, the seizure of the contraband was not a further invasion of privacy. See id. at 377 (holding that A[t]he seizure of an item whose identity is already known occasions no further invasion of privacy.@).

Based on the foregoing, we affirm the trial court=s denial of the motion to suppress.

/s/ Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed July 22, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Banks inadequately briefed his state constitutional claim by failing to provide any argument or authority regarding how the protections afforded by the Texas Constitution differ from the protections afforded by the United States Constitution. Therefore, we will not review his state constitutional claim. Tex. R. App. P. 38.1(h); McCambridge v. State, 712 S.W.2d 499, 502 n.9 (Tex. Crim. App. 1986) (explaining that A[a]ttorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground. If sufficient distinction between state and federal constitutional grounds is not provided by counsel, this Court may overrule the ground as multifarious.@); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992), cert. denied, 114 S. Ct. 154 (1993) (holding that although appellant claimed that there was a violation of the Texas Constitution, Aappellant proffers no argument or authority as to the protection offered by the Texas Constitution or how that protection differs from the protection guaranteed by the U.S. Constitution. We decline to pursue appellant=s Texas Constitutional arguments for him.@).